HomeMy WebLinkAbout2/19/2003 - STAFF REPORTS (22) DATE: February 19, 2003
TO: City Council
FROM: Assistant City Manager
CHANGE OF CITY ATTORNEY AGREEMENT FROM BURKE,WILLIAMS&SORENSEN
(BWS) TO ALESHIRE & WYNDER.
RECOMMENDATION:
It is recommended that the City Council approve a Minute Order authorizing the City
Manager to enter into an agreement with Aleshire & Wynder, LLP for legal services.
SUMMARY:
The City Council has heretofore appointed David J.Aleshire as the City Attorney under an
agreement for legal services with Burke, Williams and Sorensen, LLP (BWS). These
services have typically included, but are not limited to: municipal law, land use,
environmental, tort defense, personnel, labor relations, code enforcement, criminal
prosecution, redevelopment, housing, contracts, and public finance. Mr. Aleshire has
notified the City of his intention to leave BWS to start his own law firm. In order to continue
to have Mr. Aleshire serve as City Attorney, the City Council will need to terminate its
existing agreement with BWS and enter into a separate agreement for legal services with
the new firm.
BACKGROUND:
David Aleshire has served as City Attorney for the past 14 years. During this time, Mr.
Aleshire worked under contract with Rutan &Tucker, and most recently, the firm of Burke,
Williams and Sorensen (BWS). Mr.Aleshire has decided to terminate his relationship with
BWS in order to form his own law firm with the current Deputy City Attorney Bill Wynder.
The new firm, which is named Aleshire & Wynder, will be located in Irvine. Many of the
same attorneys who have worked with Mr. Aleshire on City matters over the years have
agreed to join the new firm, ensuring a smooth and almost seamless transition. In addition
to retaining most of the same attorneys that have worked on legal affairs for the City, Mr.
Aleshire has agreed to provide the same level of accessibility and support rendered under
the existing agreement with BWS at no additional cost to the City.
Mr. Aleshire has prepared a new agreement for legal services, copy of which is attached.
Although this agreement is almost identical to the City's existing agreement with BWS, staff
has determined that there are three primary differences between the two agreements. The
three differences are as follows:
Insurance - The City's existing agreement with BWS provides comprehensive
general liability and property damage coverage in the amount of$5 Million. Aleshire
& Wynder will provide comparable insurance, but are proposing that the coverage
amount be reduced to $3 Million.
a
Change of City Attorney Contract
February 19, 2003
Page 2
Bond Financing Counsel-Aleshire&Wynder is proposing two fee structure options
for bond financing counsel. Under the contingent fee structure, the City will pay on
a percentage basis depending on the bond issuance. For example,the City will pay
one percent (1%) of the first$1 million in financing and one-half percent (1/2%) of
the next$4 million. The non-contingent fee option is a blended hourly rate for all
attorney time incurred. The fee is $300 per hour. The existing agreement with
BWS does not provide for a non-contingent fee option.
Paralegal - The current agreement with BWS includes an automatic adjustment in
the rate for legal assistants within the current calendar year. Aleshire&Wynder has
agreed to defer any increase in rates until 2004.
Staff does not believe these differences to be significant, and recommends approval of the
agreement for legal services. The new firm will commence business operations effective
February 18, 2003.
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Troj'' L�' BED
4sl Ass ,ant City Manager
City Manager
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Attachment:
1. Minute Order
2. Aleshire & Wynder contract
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PALM SPRINGS FEE AGREEMENT
This FEE AGREEMENT (the "Agreement") is entered into by and between the
law firm of ALESHIRE & WYNDER, LLP ("A & W" or "Finn") and the CITY OF PALM
SPRINGS, a municipal corporation ("City"). The term "City" shall also include the PALM
SPRINGS COMMUNITY REDEVELOPMENT AGENCY, the PALM SPRINGS HOUSING
AUTHORITY, PALM SPRINGS FINANCING AUTHORITY, and all boards, commissions,
and other bodies of City.
1. SCOPE OF WORK AND DUTIES.
City Council hereby appoints David J. Aleshire as the City Attorney, and hires
Aleshire & Wynder and its successors as its City Attorney, to render such legal services as are
customarily rendered by a City Attorney, including attending meetings of the City Council,
Redevelopment Agency, Housing Authority, Planning Commission, and other boards and bodies
of City, and its affiliated agencies, as directed by the City. Representation shall include, but not
necessarily be limited to, reviewing ordinances and resolutions, reviewing city contracts,
recommending, reviewing and overseeing the hiring and supervising of any and all other
attorneys employed by City to perform legal work on any litigation or other matter, consulting
with or advising City staff on legal issues which arise within their areas of operation, and
generally advising the City Council and City staff concerning all legal affairs of City.
With respect to pending matters handled by attorneys previously or otherwise
employed by City, Firm shall become responsible for and proceed to represent City in such
matters once the same are identified by the City Council or City Manager and all files have been
transferred to Firm. It is further agreed that to the extent due to efficiency or other reasons, the
attorneys previously employed by the City continue to complete work assignments or undertake
additional work, such work shall be performed under the direction of the City Attorney.
Finn, as a full-service law firm, is prepared to, and will, provide representation to
City in all of its legal affairs, including, but not limited to, municipal law, land use,
environmental, toxics, mining, water, tort defense, personnel, labor representation, code
enforcement, criminal prosecution, redevelopment, housing, cable television, finance,
franchising, contracts, enterprise and other matters, except where conflicts exist or where the
City Council may otherwise direct. The City Attorney shall represent City in initiating and
defending all litigation unless otherwise directed by the City Council.
All of these duties shall be performed, as directed by the City Council, and the
City Attorney will keep City informed as to the progress and status of all pending matters.
Finally, the City Attorney is expected to manage, control and oversee the delivery of legal
services in a competent, professional, and cost-effective manner. Notwithstanding any other
provision contained herein, any legal services can only be authorized by the City Council or City
Manager.
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2. CITY DUTIES.
City agrees to provide such information, assistance, cooperation, and access to
books, records, and other information, as is necessary for Firm to effectively render its
professional services under this Agreement. To the extent City desires services to be rendered on
site, City, at City's expense, will make available sufficient office space, funriture, telephones,
computers, facsimile machines, and secretarial support, as approved by the City Manager,
necessary therefor.
City further agrees to abide by this Agreement, and to timely pay Firm's bills for
fees, costs, and expenses. In addition, City understands that the fee structure herein represents a
blending of rates, with certain services offered at discounted rates, on the assumption that, due to
the volume of work, other services will be rendered at higher rates.
Therefore, insofar as possible, it is the intent of the parties hereto that all matters
of City requiring the rendition of legal services be performed by Finn. However, nothing in this
Section, or any other part of this Agreement, shall be construed in any manner as limiting the
ultimate and absolute discretion of the City Council, at any time, to assign or reassign legal
matters of City from or to Firm.
3. LEGAL FEES, BILLING PRACTICES, AND PERSONNEL.
Finn's fees will be charged on an hourly basis for all time actually expended, and
such fees are generally billed monthly with payment due within thirty (30) days after the date of
the bill. In addition to David J. Aleshire acting as City Attorney, Finn will provide the following
additional attorneys to render the predominate legal services hereunder:
Tiffany Israel: Assistant
Eric Dunn: Assistant
Fred Galante: Deputy for Airport, Special Services
Bill Wynder: Chief Litigation Deputy
Dawn Honeywell: Deputy for Redevelopment
Other attorneys as needed.
Finn will exercise its discretion to utilize whichever attomcy(s) (and staff) it
determines to be best suited to its rendition of legal services under this Agreement, consistent
with the competent and efficient rendering of legal services, and with a view toward rendering
such services in an economically efficient manner.
The compensation schedules are set forth in Exhibits "A" and "B" attached hereto
and incorporated herein by this reference. Blended rates are computed based upon the hours of
service irrespective of the rate of the attorney. Blended rates are also shown for legal assistants.
In general, the arrangement is that there is a base amount of hours, which are
significantly discounted and referred to as the general retainer. This includes general services,
attending public meetings, preparing ordinances and resolutions, giving general advice to City
departments. A higher blended rate is charged after the retainer hours are exceeded. Special
services, including a broad range of categories (litigation, personnel, labor, redevelopment, housing,
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toxics, refuse, cable, enterprise, etc.) are billed at a higher blended rate. Public finance matters are
charged on a contingent basis based upon the size of the matter. The specific teens are set forth in
the exhibits.
The foregoing arrangement would remain in effect for at least Fiscal Years 2002-
2003 and 2003-2004. However, the hourly rates of the attorneys at Finn are reviewed amnally and,
when appropriate, adjusted to reflect increases in expertise as well as other appropriate factors.
Such increases are made on an annual basis, effective as of the beginning of each calendar year.
While the hourly rates for services rendered by individual Finn attorneys may be adjusted as set
forth herein, the "blended rates" established in this Agreement shall not be adjusted except as
provided here, and only upon the approval of the City Council.
4. COSTS AND OTHER CHARGES.
Finn may incur various costs and expenses in rendering the legal services
required by this Agreement. These costs and expenses are set forth in more detail in Exhibit "B"
attached hereto, and incorporated herein by this reference. City agrees to reimburse Firm for
these costs and expenses in addition to the hourly fees for legal services.
Firm may determine it necessary or appropriate to use one or more outside
investigators, consultants, or experts in rendering the legal services required (particularly if a
matter goes into litigation). City will be responsible for paying such fees and charges. Finn will
not, however, retain the services of any outside investigators, consultants, or experts without the
prior agreement of City. Finn will select any investigators, consultants, or experts to be hired
only after consultation with City.
The cost and expenses referred to herein include certain travel expenses;
transportation, meals, and lodging; when incurred on behalf of the client. Generally, these will
only be charged when outside of the area, and only with the prior agreement of City.
Finally, periodically, when on-site, Finn personnel may be required to make local
and long-distance telephone calls, or make photocopies, or incur other expenses on behalf of the
City as well as other clients. Finn will not be charged for such expenses and, in exchange, will
not charge the City for calls made from our office or other locations to the City.
5. STATEMENTS.
Firm shall render to City a statement for fees, costs, and expenses incurred on a
periodic basis (generally monthly). Such statement(s) shall indicate the basis of the fees,
including the hours worked, the hourly rate(s), and a brief description of the work performed.
6. PROHIBITION AGAINST SUBCONTRACTING OR ASSIGNMENT.
The experience, knowledge, capability and reputation of Firm, its partners,
associates, and employees, was a substantial inducement for City to enter into this Agreement.
Therefore, Firni shall not contract with any other person or entity to perform, in whole or in part,
the legal services required under this Agreement without the written approval of City. In
addition, neither this Agreement, nor any interest herein, may be transferred, assigned, conveyed,
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hypothecated, or encumbered voluntarily, or by operation of law, whether for the benefit of
creditors, or otherwise, without the prior written approval of City.
7. INDEPENDENT CONTRACTOR.
Firm shall perform all legal services required under this Agreement as an
independent contractor of City, and shall remain, at all times as to City, a wholly independent
contractor with only such obligations as are required under this Agreement. Neither City, nor
any of its employees, shall have any control over the mamler, mode, or means by which Firm, its
agents or employees, render the legal services required under this Agreement, except as
otherwise set forth. City shall have no voice in the selection, discharge, supervision or control of
Finn's employees, servants, representatives, or agents, or in fixing their number, compensation,
or hours of service.
S. INSURANCE.
Finn shall procure and maintain, at its sole cost and expense, comprehensive
general liability and property damage insurance, including automobile and excess liability
insurance, and professional liability insurance against all claims for injuries against persons or
damages to property resulting from Firm's negligent acts or omissions rising out of or related to
Firm's performance under this Agreement. The minimum amount of such insurance shall be
Three Million Dollars ($3,000,000.00) or such amount as the City may determine. Firm shall
also carry Workers' Compensation Insurance in accordance with applicable workers'
compensation laws. The insurance required hereunder shall be kept in effect during the tern of
this Agreement, and shall not be subject to reduction in coverage below the limits established
herein, nor cancellation, nor termination without thirty (30) days' prior written notice by
registered letter to City. A certificate evidencing the foregoing, and naming City as an additional
insured, shall be delivered to and approved by City prior to cornmencement of the services
hereunder.
9. COVENANT AGAINST DISCRIMINATION.
Finn covenants that, by and for itself, its heirs, executors, assigns, and all persons
claiming under or through them, that there shall be no discrimination against, or segregation of,
any person or group of persons on account of race, color, creed, religion, sex, marital status,
national origin, or ancestry in the performance of this Agreement. Finn shall take affirmative
action to insure that applicants are employed, and that employees are treated during ernployment,
without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry.
10. TERM, DISCHARGE AND WITHDRAWAL.
This Agreement shall continue in effect, subject to modification of fees as
provided in Section 4, until terminated by either party hereto. City may discharge Finn at any
time. The City Attorney shall not be deemed an employee of City, and shall have no right to
hearing or notice, and may be discharged with or without notice. Finn may withdraw from
City's representation at any time, to the extent permitted by law, and the Rules of Professional
Conduct, upon at least thirty (30) days' notice to City.
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In the event of such discharge or withdrawal, City shall pay Firm professional
fees and costs, in accordance with this Agreement, for all work done (and costs incurred) through
the date of cessation of legal representation. City agrees to execute, upon request, a stipulation
in such form as to permit Firm to withdraw as City's attorneys of record in any legal action then
pending. Firm shall deliver all documents and records of City to City, or to counsel designated
by City, and assist to the fullest extent possible in the orderly transition of all pending matters to
City's new counsel.
11. CONFLICTS.
Firm has no present or contemplated employment which is adverse to the City.
Finn agrees that it shall not represent clients in matters either litigation or non-litigation against
the City. However, Finn may have past and present clients or may have future clients, which,
from time to time, may have interests adverse to City, and Firm reserves the right to represent
such clients in matters not connected with its representation of the City.
If a potential conflict of interest arises in Firm's representation of two clients, if
such conflict is only speculative or minor, Firm shall seek waivers from each client with regards
to such representation. However, if real conflicts exist, Firm would withdraw from representing
either client in the matter, and assist them in obtaining outside special counsel.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date of execution by the City.
Date: "CITY"
CITY OF PALM SPRINGS, a municipal
corporation
By:
William G. Kleindienst, Mayor
ATTEST:
City Clerk
"FIRM"
ALESHIRE & WYNDER, LLP
By:
David J. Aleshire, Esq.
[END OF SIGNATURES]
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EXHIBIT "A"
FEE ARRANGEMENT
1. The retainer will be Ten Thousand Five Hundred Dollars ($10,500.00) per month
($105.00 per hour) for up to one hundred (100) hours of general legal services. This rate shall be
increased by $5 per hour on the following dates: July 1, 2003 and January 1, 2004.
2. General legal services over one hundred (100) hours per month will be billed at
the blended rate of One Hundred Sixty Dollars ($160.00) per hour. This rate shall be increased
by$5 per hour on the following dates: July 1, 2003 and January 1, 2004.
3. Special legal services shall include litigation matters, public finance, disciplinary
actions or hearings, labor negotiations, redevelopment, housing, cable television, water, mining,
toxics, refuse, franchising, enterprise activities, any major contract negotiation and other similar
special matters. Except for public finance, all such matters shall be billed at the blended billing
rate of One Hundred Eighty-Five Dollars ($185.00) per hour. This rate shall be increased by $5
per hour on the following dates: July 1, 2003 and January 1, 2004.
4. For public finance the fee structure shall, at the option of the City, be contingent
or non-contingent as follows: (i) Contingent - one percent of the first $1 million executed and
delivered; one-half percent of the next $4 million executed and delivered; one-quarter percent of
the next $10 million; one-eighth percent of the next $5 million; and one-tenth percent of any
amount over $20 million; subject to a minimum fee of Twenty-Five Thousand Dollars
($25,000.00); or (ii) Non-Contingent - $300 per hour on a blended rate for all attorney time
incurred. In the event that multiple series of bonds or notes are issued, the foregoing fee
schedule would be applied to each issue, subject to the $25,000.00 minimum fee. If Contingent,
payment of the fees are entirely contingent upon the successful execution and delivery of the
bonds or notes to be payable on or after delivery except for out-of-pocket expenses.
5. For work done on behalf of developers and private parties for document
preparation, litigation or other services, where a deposit is received against which the fees are
charged or where the fees are otherwise reimbursable, the blended rate will be Two Hundred
Dollars ($200.00) per hour.
6. In addition to the foregoing, we would be reimbursed for out-of-pocket expenses
including telephones, telecopier, messenger, courier, and other communication costs;
reproduction expense; computer research facilities; court reporters; travel expense other than to
the City; and other costs and expenses incurred on your behalf.
7. The blended rate for legal assistants, irrespective of matter, shall be Eighty
Dollars ($80.00) per hour, and for document clerks shall be Thirty-Five Dollars ($35.00) per
hour until December 31, 2003, and shall be Ninety Dollars ($90.00) and Forty Dollars ($40.00)
thereafter, respectively.
8. The other normal terms and conditions of our billing are set forth in the Statement
of Billing Practices attached as Exhibit "B".
9. The next large financing will have a credit of$9,530 applied against bond fees.
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EXHIBIT "B"
STATEMENT OF BILLING PRACTICES FOR EMPLOYMENT OF
LEGAL SERVICES
The Firm's fees are charged on an hourly basis for all time actually expended and
are generally billed monthly with payment due within thirty (30) days after the date of the bill.
Our presently prevailing hourly design rates vary between $135.00 per hour and $350.00 per
hour depending upon the experience and background of the individual attorneys and between
$45.00 and $135 for legal assistants. The current hourly design rate for the attorneys and staff
working on this matter will be set forth in the billing statement. Annually, you will be provided
with the prevailing hourly design rates for the attorneys who will spend the predominate amount
of time on this matter. It should be understood that hourly rates are reviewed, and when
appropriate, adjusted to reflect increases in seniority and experience as well as inflationary
factors. These increases are generally made on an annual basis effective on the beginning of
each calendar year.
The Firm will incur various costs and expenses in performing legal services.
These costs and expenses are separately billed to the client and include fees fixed by law or
assessed by public agencies, long distance telephone calls, messenger and other delivery fees,
postage, parking, and other local travel expenses, photocopying (charge of twenty cents ($.20)
per page) and other reproduction costs, clerical, staff overtime, computer-assisted research fees,
travel costs, including mileage at $.35 per mile, airfare, lodging, meals, and incidentals (but not
travel costs to and from the City), and other similar items including deposition, reporter fees, and
transcript fees. In addition, the client will be responsible for paying the fees of consultants and
other outside experts who are retained after consultation with the client (mileage, reproduction
and other costs are periodically adjusted in accordance with the Firm's actual costs).
It is understood that Firm will generally not charge for actual travel time, local
telephone calls or calls made to the City. In exchange, Firm shall not be charged for calls made
or received at the City, whether local or long-distance, nor for copying charges since copying on-
site will reduce the charge to the client.
The monthly billing statements for fees and costs shall indicate the basis of the
fees, including the hours worked the billable rates charged, and description of the work
performed. All bills are expected to be paid within thirty (30) days of the date of the billing
statement. in the event any statement remains unpaid for more than thirty (30) days after the date
of the statement, interest thereon at the rate of ten percent (10%) per annum shall be due and
payable thereafter on the rmpaid balance.
It is expressly understood that the client may discharge Finn at any time. Firm
may withdraw from representation at any time to the extent permitted by law under the Rules of
Professional Conduct, upon reasonable notice to the client. In the event of such discharge or
withdrawal, client shall pay Finn fees and costs in accordance with this agreement for all work
done (and costs incurred) through the termination of Firni representation of client. Upon such
termination withdrawal, Firni shall deliver to client all of its files in this matter and any property
in possession at Firm belonging to client. A
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HOURLY RATES FOR ATTORNEYS ASSIGNED TO MATTER:
David J. Aleshire $275.00
William W. Wynder $275.00
Colin J. Tam-ter $225.00
Eric L. Dunn $220.00
Fred Galante $220.00
Dawn Honeywell $200.00
Tiffany Israel $185.00
Aaron Harp $175.00
Doug Flaubert $160.00
Sunny Soltani $150.00
BLENDED RATES PREVAIL OVER THE HOURLY RATES.
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MINUTE ORDER NO.
APPROVING THE CHANGE OF CITY
ATTORNEY AGREEMENT FROM BURKE,
WILLIAMS & SORENSEN TO ALESHIRE &
WYNDER
I HEREBY CERTIFY that this Minute Order, approving the change of City Attorney
Agreement from Burke Williams&Sorensen to Aleshire&Wynder was adopted by the City
Council of Palm Springs, California in a meeting thereof held on the 131h day of February,
2003.
Patricia A. Sanders
City Clerk
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